The International Jury for the 34th America's Cup have agreed with the Defenders of the America's Cup, that they are not required to make public their Performance Data, even though the Challengers are required to do so.

Emirates Team New Zealand did not request any specific action, but asked the International Jury to answer a series of five questions, the last of which contained four sub-questions covering situations which would trigger the release of the Performance Data for each yacht when racing on the America's Cup Course.

On the final question, America's Cup Race Management gave four responses, saying that in its view competitors should be required to provide the data from their competing yachts in all four instances outlined by Emirates Team NZ. The Jury did not agree with their submission declining to support the release of data, if the races were practice races run either by ACRM, or in-house races on the America's Cup course.

In a fourteen page Decision document, the Jury accepts the argument raised by the Defenders (Golden Gate Yacht Club just supported the comments made by their team Oracle Tream USA) that there is no need for a set of Defenders Trials, as there is only one team, and therefore Oracle Team USA are both the Defender and a Defence Candidate.

As such, when the Defenders are sailing on the America’s Cup course, they have been deemed not to be racing in terms of the Protocol, and therefore even though their Performance Data is recorded by the regatta organisers, it does not have to be released to the media and public.

The Challengers are deemed to be different because although they are also sailing on the America's Cup course, they are (correctly) deemed to be racing in a Selection Series, while the Defenders because they are a 'Team of One' have no Defender Selection Series, and are immune from the requirement to publicly release data.

The Decision sanctions a very basic inequity between the Challengers and Defender in that Oracle Team USA now has the ability to use the performance data from the Challengers – which is released because they are deemed to be racing in a Challenger Selection Series. Their activities on the America's Cup Course are deemed to be training and practice racing, but not Defender Trials as such.

In arriving at its Decision the International Jury seemed to accept a comment from Oracle Team USA that a media statement issued by America's Cup organisers, on August 2, 2012, was a 'provisional schedule.. a marketing document, and not a Rule or signed agreement' which stated:

In parallel to the challenger series, Oracle Team USA will hold Defender Trials to strengthen its bid to defend the Cup. Jimmy Spithill, the skipper of Oracle Team USA when it won the Cup in 2010, will helm one of the boats, while Ben Ainslie, multiple Olympic Gold Medalist from the UK will helm the other. They will go head to head on the same racetrack and on the same days as the Louis Vuitton Cup challengers.

Those statements were backed by America's Cup Events Authority CEO, Stephen Barclay, when he told Sail-World in an interview on changes that had been made to the location of Team bases and other facilities:

Barclay says that the Challenger and Defender teams will race on the same day, but using the America's Cup course at different times.

Some of the performance data can be seen in this animation from Virtual Eye, the published MS-Excel show the data recorded at a frequency of five times per second. - ARL Media Click Here to view large photo

The Defence Series will be to determine which of the two teams Spithill or Ainslie represent the Defender, Golden Gate Yacht Club.

Interestingly, it was not the America's Cup organisers who said the release was misleading, but Oracle Team USA.

The Decision would also appear to cut across the principles of Neutral Management requiring the Parties to 'act in the best interests of all Competitors collectively' and 'not unreasonably favour the interests of one Competitor over another'.

Clearly in this instance, the Competitors are not being treated on an equal basis, regardless of the way subsequent provisions of the Protocol can be woven and interpreted. America's Cup Regatta Management, one of the Parties required to act on the basis of Neutral Management, responded in a way that supported those principles. However their response was overturned by the International Jury, who in effect, granted the advantage sought by Oracle Team USA.

The questions asked by Emirates Team New Zealand were clearly aimed at the view that racing by the Defender on the America's Cup course was only permitted as Defence Trials. (With equal time being granted to both sides in the America's Cup equation to conduct selection trials.) If there were no Defence Trials, then there was no access. But at a meeting almost a month before the release from America's Cup Media saying there would be Defence Trials, and what would be trialled, given there was only one team, the parties agreed on a schedule of agreed racing access to the America's Cup course for the Defenders and Challengers.

Covering the option that the Jury would agree with the Defender that there were no Defence Trials, then Emirates Team NZ sought to have the performance data released from racing stage by the Defender on the America's Cup course, as was being done for the Challengers.

In short, the fair view was that each side should should release their data from racing conducted on the America's Cup course during the period of the Louis Vuitton Cup.

Big gain for the Defenders

The Decision also underlines the degree to which the Defenders have gained control and influence over the Challenger Selection Series, and can now argue the fine print in the rules to gain an advantage over the Challengers, on matters where Neutral Management should prevail.

The Challenger's data can be compared with the Defender's, by the Defenders, and analysed giving the Defenders a significant advantage in knowing whether the Challengers are faster or slower than the Defenders on the America’s Cup course. More significantly the Defenders can determine on which points the Challengers may have an advantage, and then work to overcome those weaknesses.

Going into the Match the Defenders should have a good idea of the relative strengths and weaknesses of the successful Challenger, and can plan their tactics accordingly. The Challengers on the other hand will be going cold into the Match, and will have no idea of the strengths and weaknesses of the Defenders, until at least a couple of days racing have been completed - and by that stage the series is almost half over, given that four races will have been sailed.

While the teams have been conducting surveillance on each other, as permitted by the Protocol, since the AC72’s first saw the light of day, and prior, the data gathered in hat activity has been limited as it is not possible to tell the wind strength and direction on the observed boat.

Obtaining Performance Data from the Louis Vuitton Cup series alters that situation somewhat as the course wind data is included.

While Article 38.2 of the Protocol talks about competitors providing the performance data 'as required by the Event Authority for media purposes' which should mean that the data is available of accredited media only.

Instead very detailed data - way beyond the level of detail required by media is provided in a public section of the America's Cup website click here to view. The only requirement of this detailed level of data (readings at a frequency of several times per second), for media purposes, is to drive programs like Virtual Eye. But in such a use, there is no need for the underlying data to be revealed. Instead ACEA is providing full data files for access by anyone, media or not, including rival teams.

In other words, the Event Authority appears to be in breach of the Protocol over its distribution of the performance data from the Challengers.

Two wrongs might make a right, if the Defender's performance data from racing on the America's Cup course, were also available publicly and through Virtual Eye. But that is not the case.

Added to the advantage for the Defender is the fact that from TV coverage and broadcasts of the Louis Vuitton Cup, a further benefit is gained where they have access to helicopter shots of the Challengers. Defender racing is not videoed by America's Cup TV.

Taking all the data and video sources as whole, the Defenders have significant advantage to which the Challengers are denied.

For instance, the information could be used to determine how Emirates Team New Zealand undertakes their foiling gybes. Using the performance data, boats speeds and boat course during the gybe can be tracked frame by frame on a computer, alongside that a video of the crew movements can be synchronized allowing a choreograph of the foiling gybe to be developed.

Under the Jury ruling it would seem that the Challengers will never see any data from the Defenders until the Match for the 34th America’s Cup.

By staying out of the Semi-Finals, Emirates Team NZ will deprive Oracle Team USA of one set of data, but will be forced to show her hand again in the Finals. That will give the Defenders the chance to determine whether they have the measure of the Challengers, and also what gains have been made since the Round Robin

The only option open to the Challengers would appear to be to sandbag, once the outcome of the Semi or Final race is known, and render the performance data largely useless.

For fans outside the San Francisco bubble, an interesting source of information has been neutered.